NLRB’s New “Ambush Election Rules” Go Into Effect

The National Labor Relations Board’s (NLRB’s) “ambush election rules,” which make sweeping changes to the procedures applicable in union representation cases, took effect on April 14, 2015. Despite two pending lawsuits currently challenging these new rules as contrary to the National Labor Relations Act’s (NLRA’s) plain language and legislative history, the NLRB’s Office of General Counsel recently released a 36-page, single-spaced “guidance memorandum” regarding its “streamlined” procedures. Employers need to adjust to this new reality and react accordingly.

The New Election Rules

The NLRB’s new “ambush election rules” make significant changes to longstanding rules governing union elections. In every instance, the changes make it more difficult for employers to communicate with their employees and, therefore, ensure that employees can make an informed choice when deciding whether to vote for or against unionization.

The new rules specifically make the following important changes:

Length of Time Between Petition and Election Date

• Eliminate the 25-day period between the date an election is ordered and the date the election is held. Now elections will be held “as soon as practical.” In reality, this change will reduce the time between the filing of a petition and the election date from an average of 42 days to between 10 and 24 days.

Filing and Service Requirements

• Permit parties to electronically file election petitions and case documents, and permit the NLRB regional offices to deliver notices and documents electronically rather than by mail.

Information Received by the Parties and Prospective Voters

• Require the petitioner to serve (1) a copy of the petition, (2) a description of the new procedures, and (3) a Statement of Position form.

Statement of Position

• Require the employer, by noon of the day before the pre-election hearing, to file a Statement of Position detailing any challenges the employer has to the proposed unit, including specifically identifying any classifications, locations or employee groupings the employer contends should be added to or excluded from the proposed unit, and the bases for such contentions.
• Require the employer to include with its Statement of Position an alphabetized list of the full names, work locations, shifts and job classifications of all individuals in the proposed unit.
• Deem any arguments not raised in the Statement of Position to be waived unless the employer can show good cause for the omission.

Timing of the Pre-Election Hearing

• Require a pre-election hearing to begin eight days after a hearing notice is served, except in cases presenting “unusually complex issues” (which the NLRB has not defined).

Substance of the Pre-Election Hearing

• Do not provide employers the right to have appeals of the NLRB regional director’s voter eligibility and inclusion determinations heard by the NLRB until after the election.
• End the parties’ right to file a brief within seven days of the closing of the pre-election hearing and, instead, allow such briefing only if the regional director determines it is necessary.

Excelsior List

• Require, within two days of the approval of an election agreement or direction of election, that, in addition to the home addresses previously required, an employer must provide to the union petitioner a list of the bargaining unit employees’ home and cellular phone numbers and personal email addresses.

Election Notice Procedures

• Require that employers distribute election notices via email in addition to posting the notices as previously required.

Post-Election Procedures

• Require that objections to an election be filed within seven days of the tally of ballots and be accompanied by an offer of proof, identifying witnesses and summarizing their anticipated testimony.
• Provide the NLRB discretion to determine whether to review aspects of post-election decisions made by the regional director.

The Rules Take Effect Despite Legal Challenges

Due to the negative effects on employers’ ability to communicate with their employees and ensure that employees can make an informed decision in any union election, the new rules have been roundly criticized. Two groups currently have pending federal lawsuits challenging the rules, one filed earlier this year in the U.S. District Court for the District of Columbia (United States of America, et al. v. NLRB, Case No. 1:15-cv-00009), and one filed in the U.S. District Court for the Western District of Texas (Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, Case No. 1:15-cv-00026). The Associated Builders’ lawsuit, for example, contends that the “purpose of [the new rule] is to achieve the impermissible pro-union objective of accelerating the election process to such an extent that employers will be unable to respond effectively to union organizing campaigns.”

Despite ongoing legal challenges, the NLRB has not been enjoined from implementing and enforcing the new rules. The NLRB Office of General Counsel’s memorandum issued April 6, 2015 confirms that, absent an intervening court decision, the NLRB is implementing and enforcing the changed rules detailed above effective April 14, 2015. Consequently, unless and until a court rules to the contrary, employers must be prepared to abide by the new rules.

The NLRB’s Guidance Memorandum, Memo Number GC-15-06, is available at: www.nlrb.gov/reports-guidance/general-counsel-memos

Employer Response to the New Rules

The significant changes entailed by the new rules severely hamper employers’ ability to effectively respond to union petitions. At a minimum, employers should use the rules’ implementation as the impetus to conduct a strategic review of their union avoidance preparation. Among other things, employers may want to:

• Review supervisor designations and the relevant job duties of supervisor positions to ensure that employees occupying those positions unquestionably are supervisors under the NLRA.
• Review their organization structure to provide the best configuration to avoid unfavorable “micro-units.”
• Conduct appropriate education efforts with both supervisors and hourly employees before a union petition to ensure that employees are appropriately educated and can make an informed decision about potential unionization, even with the shortened election period.
• Consider and prepare potential legal arguments and pleadings so they are ready in the event a petition is filed.
• Consider numerous other steps, many of which will be dependent on facts and issues specific to a particular industry and each particular employer.

Further, employers should continue to monitor developments from the NLRB closely with regard to the new election rules. We will alert you if any court decision enjoins or otherwise affects the rules in their current form. In the meantime, please reach out to your McGuireWoods contact or a member of the McGuireWoods traditional labor team for any questions you may have or assistance needed regarding the new rules or strategically reacting to the rules in an effective manner.